Canada’s relationship with indigenous people should be a partnership

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With a simple statement in New York this week about First Nations' rights, the Trudeau government gambled that Ottawa can forge a new, productive partnership with indigenous Canadians.

The stakes are high. Failure could mean billions of dollars of economic opportunity lost and thousands of indigenous Canadians, especially First Nations living on reserves, consigned to another generation of poverty. Success requires everyone – government, business, indigenous and non-indigenous Canadians alike – to think and act differently.

"We are not in a good place now," says Brenda Gunn, a professor of law at the University of Manitoba. "Canada's not at peace. But recognizing rights is how we actually live together in a harmonious relationship. This is how we can reconcile."

Technically, Indigenous Affairs Minister Carolyn Bennett has removed qualifications attached to Canada's 2010 signing of the United Nations Declaration on the Rights of Indigenous Peoples. By removing those qualifications, the Canadian government is saying that it intends to live by the spirit of the declaration.

Although the gesture is largely symbolic, it suggests that this government accepts the message that the Supreme Court has been sending to Liberal and Conservative governments for four decades with rulings that have strengthened the rights of native and other indigenous people. The relationship between Canada and its indigenous peoples, the courts are saying, should be a partnership. Justin Trudeau, it would seem, agrees.

Paternalism, resentment and denial of indigenous rights are "slowly eroding in favour of an acknowledgment of the need to make redress, to fully participate in reconciliation, and ultimately to negotiate solutions to what are very difficult problems," says Julian Falconer, a lawyer and long-time advocate for indigenous Canadians.

For some non-indigenous Canadians, this can be a scary thought. It suggests that the UN principle of "the free, prior and informed consent" for indigenous peoples on projects involving ancestral lands amounts to an indigenous veto over the use of Crown land, which makes up 89 per cent of Canada.

People fear blockades, endless legal challenges, abandoned investment, lost jobs and lost taxes to pay for hospitals and schools.

"It becomes this odd tug of war over marbles. 'They're my marbles. My marbles are being threatened,'" Mr. Falconer observes. Instead we need to "change how we think and start accepting that we need to get along with people who are as legitimately on their lands as we are."

In any case, even though an indigenous veto over resource development on claimed land does not exist in law, "in practice it often seems to work as if there's something not far from it," says Dwight Newman, Canada Research Chair in Indigenous Rights in Constitutional and International Law at the University of Saskatchewan.

Indigenous objections can lead to lengthy legal delays, "and from a practical perspective, a lot of resource projects don't tolerate delays very well."

Which is why business is gradually learning to partner with indigenous communities before the fact rather than after. Pierre Gratton, president of the Mining Association of Canada, counts more than two dozen mining projects that have been approved by federal or provincial governments in the past decade. Almost every one of those proposals includes agreements with the relevant First Nation, although a few are still being negotiated.

Only three proposals have been rejected, in part due to indigenous concerns, although it is the rejections that make the news.

"Mining projects in Canada today pretty much always come with agreements" with indigenous communities, Mr. Gratton says. "… Strong relationships with local communities is normal business practice now."

Granted, oil and gas pipelines are a problem. Unlike mining and forestry projects, pipelines cut across multiple jurisdictions and can be devilishly hard to negotiate. But that only increases the need for everyone involved to be part of the process from day one.

"We keep getting hung up on consent, but it's really not that difficult," Prof. Gunn believes. "It's not about industry and government coming up with a plan and running it by indigenous people. That's what gets us into this jam."

Instead, it means "when indigenous people's rights are meaningfully impacted, that they are meaningfully engaged in the decision-making process." And that means from the get-go. No one has a veto and everyone does.

If you want to know what a "nation-to-nation" relationship means, that is what it means.